SCDSS v. Ricky Pittman

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Department of Social Services,
Respondent,

v.

Andrea Benjamin and Ricky Pittman, Defendants,

Of whom Ricky Pittman is the Appellant.

In the interest of a minor under the age of eighteen.

Appellate Case No. 2018-002008

Appeal From Cherokee County
James F. Fraley, Jr., Family Court Judge

Unpublished Opinion No. 2019-UP-382
Submitted November 27, 2019 – Filed December 6, 2019

AFFIRMED

Jennifer Lynn Mook, of Law Office of Jennifer Mook,
LLC, of Aiken, for Appellant.

Andrew Troy Potter, of the South Carolina Department
of Social Services, of Anderson, for Respondent.
Harry A. Hancock, of Columbia, for the Guardian ad
Litem.

PER CURIAM: Ricky Pittman (Father) appeals the family court's termination of
his parental rights (TPR) to his minor son (Child), arguing clear and convincing
evidence does not support TPR based on the following grounds: (1) severe or
repetitious harm and (2) having a diagnosable condition unlikely to change within
a reasonable time. Father also argues TPR was not in Child's best interest, and the
family court erred in failing to dismiss the TPR complaint because it did not
comply with section 63-7-2540 of the South Carolina Code (2010). We affirm.

On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis
v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court
reviews the family court's findings de novo, we are not required to ignore the fact
that the family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony. Lewis,
392 S.C. at 385, 709 S.E.2d at 651-52.

We find clear and convincing evidence supports TPR based on severe or
repetitious harm. See S.C. Code Ann. § 63-7-2570 (Supp. 2019) (providing the
family court may order TPR upon finding one or more statutory grounds is
satisfied and finding TPR is in the best interest of the child); S.C. Dep't of Soc.
Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999)
(providing the grounds for TPR must be proven by clear and convincing evidence);
§ 63-7-2570(1) (providing a statutory ground for TPR is met when "[t]he child . . .
while residing in the parent's domicile has been harmed . . . and because of the
severity or repetition of the abuse or neglect, it is not reasonably likely that the
home can be made safe within twelve months"); S.C. Code Ann. § 63-7-20(6)
(Supp. 2019) (providing harm occurs when a parent "inflicts or allows to be
inflicted upon the child physical or mental injury or engages in acts or omissions
which present a substantial risk of physical or mental injury to the child"). The
family court made three findings that Father harmed Child. In the most recent
instance, Father inflicted bruises all over Andrea Benjamin's (Mother's) body,
threw frozen sausage at her, dumped "pig slop" on her head, knocked her out, and
shoved Child in the process. This was at least the third time Child had been
exposed to domestic violence in the home. We find this type of violent behavior
inflicted between his parents puts Child at a substantial risk of physical and mental
injury. Thus, we find Child was harmed.

We further find that due to the severity and repetition of harm it was not
reasonably likely the home could be made safe within twelve months. See
§ 63-7-2570(1) ("In determining the likelihood that the home can be made safe, the
parent's previous abuse or neglect of the child or another child may be
considered."). In two previous DSS actions Father successfully completed his
treatment plan and regained custody of Child, yet violence in the home continued.
The third case of domestic violence between Father and Mother was clear and
convincing evidence that it was unlikely Father would make the changes necessary
to provide a safe home. Father argues he completed significant treatment during
the most recent DSS case. However, because he has continued to resort to
violence after completing prior treatment plans, we find it is not reasonably likely
the home can be made safe based on the severity and repetition of the harm.

We also find clear and convincing evidence shows Father had a diagnosable
condition unlikely to change within a reasonable time that made him unable to
provide minimally acceptable care. See § 63-7-2570(6) (providing a statutory
ground for TPR is met when the parent has a diagnosable condition unlikely to
change in a reasonable time that prevents the parent from providing minimally
acceptable care). Father testified he stopped using methamphetamines in May
2017, completed drug treatment programs three times, and continued to attend
treatment voluntarily. His clinical counselor testified Father successfully
completed his drug program on September 15, 2017; however, she also testified he
tested positive for methamphetamines three days before he completed the program.
We find testing positive three days prior to completing the program and four
months after he testified he stopped using methamphetamines are inconsistent with
his statements he has remained drug free. Therefore, we find clear and convincing
evidence Father had a methamphetamine addiction that is unlikely to change
within a reasonable time, and that condition makes it unlikely Father can provide
minimally acceptable care.

We find TPR is in Child's best interest. See § 63-7-2510 ("The purpose of [the
TPR statute] is to establish procedures for the reasonable and compassionate [TPR]
where children are abused, neglected, or abandoned in order to protect the health
and welfare of these children and make them eligible for adoption . . . ."); S.C.
Code Ann. § 63-7-2620 (2010) ("The interest[] of the child shall prevail if the
child's interest and the parental rights conflict."); S.C. Dep't of Soc. Servs. v. Smith,
343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000) (providing in TPR cases
the best interest of the child is the paramount consideration). The DSS caseworker
and the guardian ad litem (the GAL) both testified TPR was in Child's best interest.
Father has been violent in the presence of Child throughout his life. Father was
convicted of domestic violence for significantly beating Mother, and he threatened
to kill Mother, Child, and himself. He has shown signs of aggression by
attempting to intimidate the GAL and DSS caseworker by stating he knew where
they lived, where their families went to school, and the kind of cars they drove. He
indicated he was going to flip a table at them and he threw pictures in the DSS
caseworker's face. We find these acts were clear and convincing evidence Father
resorts to violence and aggression, making his home unsafe for Child. We further
find his failure to adequately deal with his addiction puts Child at great risk in the
home. Moreover, Child was placed in foster care on three separate occasions,
totaling over forty three months. We find the instability of going in and out of
foster care for a third of Child's life is not in his best interests. Thus, we find TPR
is in Child's best interest.

We also find the GAL's investigation was independent and sufficient. The
evidence presented at the TPR hearing and in the GAL's report shows she
conducted an independent and sufficient investigation. See S.C. Code Ann.
§ 63-11-530(B) (2010) (providing the GAL is authorized to: "(1) conduct an
independent assessment of the facts; (2) confer with and observe the child
involved; (3) interview persons involved in the case; (4) participate on any
multidisciplinary evaluation team for the case on which the guardian ad litem has
been appointed; (5) make recommendations to the court concerning the child's
welfare"). The GAL met with Mother and Father twice and Child on three
occasions. Although she did not meet with Father's treatment providers and
therapists, she testified she read their reports and reviewed the file and notes.
Thus, we find the GAL's investigation was independent and sufficient.

Finally, we find Father's argument that the family court erred in failing to dismiss
the TPR complaint is not preserved. See Charleston Cty. Dep't of Soc. Servs. v.
Jackson, 368 S.C. 87, 105, 627 S.E.2d 765, 775 (Ct. App. 2006) ("[A]n issue
cannot be raised for the first time on appeal, but must have been raised to and ruled
upon by the trial court to be preserved for appellate review." (quoting Staubes v.
City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000))); Ex parte
Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654 (2006) (providing procedural rules
are subservient to the court's duty to protect minors but noting the court has the
discretion to apply the procedural rule). This issue was not raised to the family
court in Father's response, at the TPR hearing, or through a post-hearing motion;
thus, we find this issue was not preserved and decline to address it.
AFFIRMED.1

HUFF, WILLIAMS, and MCDONALD, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.